Recent Events in Sudan and the ICC: The Prosecutor v. Omar Al-Bashir

Naz Khan

Guest Editor

ICC Jurisdiction

In Resolution 1564,[1] the U.N. Security Council (UNSC) requested the U.N. Secretary-General investigate reports of gross violations of humanitarian and human rights laws in the Darfur region of Sudan between 2003 and 2008.[2] The International Commission established that the Sudanese government, along with Rapid Support Forces (RSF) or Janjaweed militias,[4] carried out indiscriminate attacks on civilians including mass rapes, killings, torture, enforced disappearances and the destruction of villages on a systematic basis throughout Darfur.[5] The International Commission referred these crimes to the International Criminal Court (ICC) who issued an arrest warrant for Al-Bashir, the incumbent President of Sudan.[7]

The case raised several issues of contention: first the issue of an arrest warrant for an incumbent head of state was contentious; second the African Union (AU) requested a deferral of the case and established a High-Level Panel on Darfur, seeking to find an African solution to bring about accountability and reconciliation in the region. Charges against Al-Bashir included crimes against humanity, war crime, and genocide based upon perpetration by means, meaning that Al-Bashir had committed these crimes indirectly through the army and the militia.[8] ICC jurisdiction, in this case, is established by a UNSC referral, since Sudan is not a party to the Rome Statute of the ICC.[9] Article 13 enables the UNSC to refer a case to the ICC, according to its powers under Chapter VII UN Charter.[10]

Domestic Charges

Instead of being surrendered to the ICC to face charges on international crimes, Al-Bashir has been in the custody of the military who instigated a coup in April 2019.[11] Al-Bashir now faces prosecution in Sudan for corruption, after being found with $113 million in foreign currency in grain sacks at his residence.[12] Prosecutors in Sudan have informed Al-Bashir that he faces charges of “possession foreign currency and acquiring suspicious and illicit wealth”,[13] based on an emergency decree that Al-Bashir himself imposed following protests to his rule that made it illegal to carry more than $3,000 in foreign currency.[14]

Concerns were raised however, about the potential for Al-Bashir to receive a fair trial in Sudan and the possibility of escaping prosecution for the most serious international charges against him.[15] Further investigations could lead to domestic charges for money laundering, financing of terrorism, or the killing of up to 100 protestors – which could lead to a potential death penalty under Sudanese criminal law.[16] Because such domestic charges involve a long prison sentence or potential death penalty, Al-Bashir could escape being tried at the ICC for the mass atrocities and the deaths of around 300,000 people, including allegations that he had overseen an attempt to wipe out part of the Fur, Zaghawa and Masalit communities.[17]

A Massive Blow to the ICC?

The ICC has faced numerous criticisms throughout its 20-year history, for long delays, weak management, and ineffective prosecutions,[18] including interferences with witnesses,[19] and in particular from the nations of the AU for its disproportionate emphasis upon situations in Africa.[20] The OTP currently investigating ten situations in Uganda, Democratic Republic of Congo (DRC), Darfur, the Central African Republic (CAR), Kenya, Libya, Côte D’Ivoire, Mali, another situation in CAR, in Georgia, and Burundi (since 2017).[21] This African focus has led to numerous accusations against the court of double-standards, neo-colonialism, and ‘white justice’, which makes the ICC no more than a criminal court for Africa, while failing to address war crimes in Iraq, or Afghanistan perpetrated by Western leaders.[22] Such accusations have been growing over the past decade, with AU member states regularly threatening to withdraw en masse from the Rome Statute; South African announced its withdrawal in October 2016.[23]

The Al-Bashir case has been symbolic of this diplomatic crisis between the AU and the ICC, the AU being early supporters of the ICC, while other states (notably permanent members of the Security Council: the United States and China) have never ratified the Rome Statute. [25] African leaders have been highly critical of the indictment against Al-Bashir, with Jean Ping, chairperson of the AU’s Commission arguing that “international justice seems to be applying its fight against impunity on to African as if nothing were happening elsewhere – in Iraq, Gaza, Colombia or in the Caucasus.”[26] The AU adopted an official policy of non-cooperation with the ICC; arguing that the peace process in Sudan should take precedence over the ICC arrest warrant for Al-Bashir, and claiming that as a head of state he enjoyed immunity to prosecution.[27] This non-cooperation by the AU has also led to the collapse of the trial of the Kenyan President Uhuru Kenyatta in December 2014,[28] thus exacerbating the perceived crisis of legitimacy for the Court.

Non-cooperation has also been a feature of the failure of the ICC to obtain custody of Al-Bashir, who has travelled to Ethiopia, Chad, Malawi, the DRC, Nigeria, Kenya, and South African, during the period of his arrest warrant; all of whom have failed to arrest and surrender Al-Bashir to the ICC,[29] which is part of their obligation as parties to the Rome Statute. In the light of the non-cooperation of African States with the Office of the Prosecutor, it appears that the Al-Bashir case will be critical to the future of the ICC. If the ICC manages to prosecute the former Sudanese leader, this will show that the ICC can overcome the lack of support from African countries and the AU. However, it seems most likely that Al-Bashir will be prosecuted in Sudan, leaving the international charges untried.

[2] Int’l Comm’n of Inquiry on Darfur, Rep. of the Int’l Comm. of Inquiry on Darfur to the U.N. Secretary-General, at 1(2005) (pursuant to S.C. Res. 1564, (Sept. 18 2004)) [hereinafter Inquiry on Darfur].

[28] Lorraine Smith-van Lin, Non-Compliance and the Law and Politics of State Cooperation, inCooperation and the International Criminal Court: Perspectives from Theory and Practice 114 (Olympia Bekou & Daley Briketts eds., 2016).

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